Early in his administration, Donald Trump signed two executive orders taking aim at both existing and future safeguards for health, safety, and the environment, part of an ongoing assault on our safeguards by the White House and the conservative majority in Congress — what presidential advisor Steve Bannon has cynically described as the “deconstruction of the administrative state.”
In a June 2017 paper, CPR Member Scholar Joseph Tomain dissects the executive orders, concluding that they are at once nefarious and ham-handed. One order requires agencies to identify two regulations to be repealed for each new regulation they propose (the bumper-sticker driven “two-for-one” order), and the other directs agencies to establish task forces to conduct a redundant review of rules that could be candidates for repeal or weakening.
In his paper, The Twin Demons of the Trump-Bannon Assault on Democracy, Tomain observes that the two executive orders suffer from significant constitutional problems. The "two-for-one" order, in addition to ignoring the monetary and health and safety benefits or regulation, is legally problematic because it encourages indiscriminate gutting of regulatory safeguards without exposing proposals to strip away protections to agency and judicial review as required by the U.S. Supreme Court. It also runs roughshod over the requirement that agencies honor enabling legislation and carry out congressional instructions in laws like the Clean Air Act and the Occupational Safety and Health Act.
The second order adds wasted time and useless costs to the regulatory process.
In addition, Tomain argues that both orders are guilty of rejecting government’s constitutional obligation to act in the public interest. In support of his argument, Tomain sketches the history of regulation in the United States, and notes that,
[E]ven as regulation has ebbed and flowed, it has always been the case that rules do not indiscriminately impose costs on blameless actors. Regulations protecting children from lead poisoning may well impose costs; so do clean air regulations directed to power plants to reduce greenhouse gas pollution. However, those compliance costs are a necessary corrective to market forces that would otherwise encourage individuals and businesses to externalize the harmful consequences of their actions or products as much as possible. Instead of simply imposing costs on bad actors, regulations require the responsible market actors to account for the harms that they have inflicted on the public. Regulation, then, is intended to avoid those harms in the first place rather than impose them on innocent persons. Polluters should not profit from causing asthma or heart disease. Regulation or its reduction is not intended to reward malfeasants; it is intended to provide compensation, avoid harm, and promote public welfare.
Tomain and fellow CPR Member Scholar Amy Sinden were lead authors of an amicus brief filed in support of a lawsuit brought by Public Citizen and other public interest organizations. They were joined by several other CPR-affiliated legal experts, acting in their individual capacities.